United States v. Maestas
2011 U.S. App. LEXIS 13171
| 10th Cir. | 2011Background
- Maestas, a LANL PF-4 technician, took a gold piece contaminated with plutonium while attempting to leave the facility.
- The gold was in a glove box area and wrapped with yellow tape indicating contamination; Maestas knew yellow tape signified radioactive material.
- Maestas initially claimed he scanned the gold with a hand-held monitor but did not recall or understand the monitor’s limitations regarding plutonium.
- The PCM-2 radiation detector at PF-4 detected beta radiation from the plutonium, while the hand-held monitor (HFM-8) primarily detects alpha radiation and may miss intra-gold contamination.
- The district court applied U.S.S.G. § 2B1.1(b)(13) enhancement for a conscious or reckless risk of death or serious bodily injury and sentenced Maestas to 12 months and 1 day.
- Maestas pled guilty to theft of government property; the government dismissed the nuclear-material theft count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2B1.1(b)(13) requires subjective awareness of risk | Maestas argues consciousness of risk is required | Maestas contends no subjective awareness is needed | No subjective awareness required; risk conscious or reckless either suffices |
| Whether the gold posed a dangerous risk and Maestas knew it | Government proved danger and Maestas knew of radiation risks | Maestas claimed he did not know the gold was radioactive | District court findings supported danger and Maestas's knowledge |
| Application of the enhancement to this case | Enhancement appropriate given conscious/reckless risk | No enhancement if no subjective awareness or risk understood | enhancement affirmed; guidelines require conscious or reckless risk, not subjective awareness |
Key Cases Cited
- United States v. Doe, 398 F.3d 1254 (10th Cir. 2005) (standard of review for guideline application)
- United States v. Talamante, 981 F.2d 1153 (10th Cir. 1992) (clear error standard for factual findings)
- United States v. McCord, Inc., 143 F.3d 1095 (8th Cir. 1998) (claims subjective awareness required for 2B1.1(b)(13))
- United States v. Johansson, 249 F.3d 848 (9th Cir. 2001) (rejects subjective-awareness requirement for 2B1.1(b)(13))
- United States v. Lucien, 347 F.3d 45 (2d Cir. 2003) (defendant need not know the risk)
- United States v. Babul, 476 F.3d 498 (7th Cir. 2007) (risk standard tied to probability rather than certainty)
- Gonzales v. United States, 456 F.3d 1178 (10th Cir. 2006) (language on disjunctive terms implying different meanings)
- Gall v. United States, 552 U.S. 38 (Supreme Court 2007) (no requirement of extraordinary circumstances for outside-range sentences)